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Why “natural”?

Why did the Founders not simply say “born citizen”?

Attorney Mario Apuzzo dropped by and left a question for me, challenging my assertion that “natural born citizen” just means “born a citizen”. He asked: Why did the Founders not simply say “born citizen”?

There are two parts to the answer. The immediate reason, I believe, is that “natural born citizen” is intentionally a reference to the common law term “natural born subject” that appears in British common law and all throughout the colonial laws and charters, substituting “citizen” for the inappropriate “subject”. “Subject” even appears in post Revolution state laws. The substitutability of “citizen” for “subject” was asserted by the Supreme Court in its discussion of US v Wong. Justice Gaston said, in State v. Manuel, 4 Devereaux & Battle 25-26 (N.C., 1838):

The term “citizen” as understood in our law, is precisely analogous to the term subject in common law, and the change of phrase has entirely resulted from the change of government.

The question then becomes: why did British law use “natural born subject” instead of just “born subject”? I think the answer lies in the nature of British naturalization. Eighteenth century naturalization in Britain made an alien not only a subject, but it made them a subject from their birth. Natural born citizens and naturalized citizens are both citizens from birth under English law!

British naturalization acted retroactively; however, certain privileges were withheld from these naturalized citizens from birth. This is why British law makes the distinction between natural born citizens and naturalized citizens (those who were born as citizens and those who were made citizens from birth by act of Parliament). Natural born means that one was a citizen when they were born, as opposed to the legal fiction of being a citizen from birth through naturalization.

This of course poses a problem for any potential US presidential candidate who was made a citizen from birth by US law acting retroactively.

65 Responses to Why “natural”?

  1. avatar
    Heavy August 12, 2009 at 10:55 am #

    Lots of verbiage without meaning. Typical worshipper blather.

  2. avatar
    Rickey August 12, 2009 at 11:42 am #

    Apuzzo, of course, has been pushing the dubious assertion that the Founders relied upon Vattel, but as I pointed out elsewhere the two-volume collection “Debate on the Constitution” contains no mention of Vattel. The legal scholar who was most frequently cited by the Founders was William Blackstone, and Blackstone wrote in 1765 that under British common law “The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.” Blackstone went on to differentiate British common law from French law: “…the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.”

    The Founders looked to British common law for precedent, not to the French or the Swiss. On British common law, Blackstone could not be more clear — someone born in this country is a natural born citizen. The only exceptions are the children of foreign diplomats and the children of foreign occupying forces.

  3. avatar
    jtx August 12, 2009 at 12:32 pm #

    Rickey:

    “Subjects” and “citizens” are not synonomous, Docs’s blather notwithstanding. Nor did the US use English common law for all things on which to base the Constitution.

    And Vattel’s treatise was widely used rather than being “dubious” and even passed around by the founders – many of whom were fluent in French (that’s how Ben F. scored so well with the French ladies for example). And John Jay had a Huguenot background as well.

    But I think the best thing to do is to see what the court decides about whether Obama is legally eligible to hold the office he now occupies. After all, the man has told everyone he was born a Brit (or do you think he’d lie???).

  4. avatar
    SFJeff August 12, 2009 at 12:40 pm #

    “Lots of verbiage without meaning.”

    Oh the irony.

  5. avatar
    SFJeff August 12, 2009 at 12:44 pm #

    “is to see what the court decides about whether Obama is legally eligible to hold the office he now occupies.”

    How is that working out for you so far JTX?

    “After all, the man has told everyone he was born a Brit (or do you think he’d lie???).”

    Actually he also said that he was born in Hawaii- but Birthers don’t believe that part. And since he was borne in Hawaii, whether he was also a citizen at birth of Britain doesn’t matter. And if you think it does matter, please cite a real expert who says so.

  6. avatar
    Greg August 12, 2009 at 12:53 pm #

    The Founders operated in a society that clearly understood what “natural born” meant when applied to subject. All of the colonies operated under a system that recognized natural born subjects. Several of the states used the term natural born subjects in their constitutions. The term natural born subject had more than 500 years of common law history behind it, both in Britain and in the United States – as colonies of England and then under the Articles of Confederation.

    Despite this, you think the Founders, all smart men, used the term “natural born citizen” to completely change the meaning of “natural born” without once hinting that they were doing it or why?

    And Vattel’s extremely important, but the Founders fail to mention, ever, his influence in, say, the Federalist Papers (they do mention Blackstone), or in any of the debates about writing or ratifying the Constitution?

  7. avatar
    dunstvangeet August 12, 2009 at 1:03 pm #

    They are according to the Supreme Court, jtx. You know that decision that you so love to quote: Minor v. Happersett?

    “For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words ’subject,’ inhabitant,’ and citizen’ have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.”

    Then of course, you have the original state constitutions of various states…

    Vermont, for example, said, “Every person of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate; and after one year’s residence shall be deemed a free denizen thereof, and entitled to all rights of a natural born subject of this State…”

    It was written in 1793, six years after the US Constitution (1787).

    Massachusetts’ Constitution (1780) drafted by John Adams, states, “And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner…”

    New Hampshire (1784): “Every subject of this state is entitled to a certain remedy…”

    New York (1777): “All such of the persons so to be by them naturalized, as being born in parts beyond sea, and out of the United States of America, shall come to settle in and become subjects of this State, shall take an oath of allegiance to this State, and abjure and renounce all allegiance and subjection to all and every foreign king, prince, potentate, and State in all matters, ecclesiastical as well as civil.”

    Pennsylvania (1776): “…entitled to all the rights of a natural born subject of this state…”

    New Jersey (1776): “…shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.”

    (Thanks, by the way, to Greg. I stole most of this from him).

  8. avatar
    dunstvangeet August 12, 2009 at 1:22 pm #

    My argument would be the following:

    If you take a look at the word “Naturalized” you can break it down into “Natural-” “-ize” and “-ed”

    So, the verb “Naturalize” literally means “to make someone Natural”.

    Following this logic, my argument is the following. All citizens are Natural Citizens. You have citizens who were Natural Born Citizens, and you have Citizens who were made Natural at a date past their birth.

    So, if you take a look at the word “Naturalize”, then you have no doubt why “Natural Born Citizen” was used.

  9. avatar
    kimba August 12, 2009 at 2:00 pm #

    “fluent in French (that’s how Ben F. scored so well with the French ladies for example)”

    Ahem, if you knew a little history you would know his command of French was not the reason Mr Franklin was popular with French women.

  10. avatar
    Rickey August 12, 2009 at 3:16 pm #

    As usual, jtx is pulling his arguments out of someplace other than history books or legal texts.

    There no evidence that the Founders were influenced by Vattel, but there is much evidence that they were influenced by Blackstone. Hamilton even refers to Blackstone by name and calls him “judicious” (Federalist No. 81).

    jtx also appears to be unaware of the fact that the British, in the 18th century, did not call themselves “citizens.” They were “subjects.” The only distinction is that the word “subject” refers to a citizen who owes allegiance to a monarch. As Merriam-Webster points out:

    CITIZEN is preferred for one owing allegiance to a state in which sovereign power is retained by the people and sharing in the political rights of those people. SUBJECT implies allegiance to a personal sovereign such as a monarch.

    Thus, Blackstone would not have used the word “citizen” to describe the people of Britain. And, not coincidentally, The Federalist does not refer to Americans as “subjects.” A subject in Great Britain was the equivalent of a citizen in the United States.

  11. avatar
    jvn August 12, 2009 at 3:36 pm #

    To me the most important part of this discussion has been the contention made by the “birthers” that the Founders intended to create a third, higher class of citizen, a “super native born citizen” as it were.

    No other country in the world had something like this. Even the vaunted de Vattel described either citizens or not citizens. When de Vattel wrote of “citizens born of parents who were citizens” he was not referring to a “super native born citizen,” someone who went beyond “simple” citizenship at birth – HE WAS WRITING ABOUT THOSE WHO WERE CITIZENS AT BIRTH.

    There is no evidence that the Founders wanted to create a new, special class of citizens that alone could aspire to political leadership. If they did, I would imagine that there would be some historical record of that intent and discussions about the appropriateness of such legislation.

  12. avatar
    jtx August 12, 2009 at 7:09 pm #

    SFJeff:

    Clearly you in the Flying Monkey Squadron do not understand how Brit law works.

    You should study this link:

    http://birthers.org/misc/logic.htm

    No matter the BC (or lack thereof) using the man’s own admission against interest he is not legally eligible to hold the office he now occupies.

    Oh, and it’s not ME it’s “working out for” but the entire country. Perhaps a few of you Enablers (who are the REAL “conspiracy engagers” by trhing to keep this guy in power) think it’s “neat-o” to have an illegal guy as President but I’d think that 70-80% of Americans would not agree.

  13. avatar
    jtx August 12, 2009 at 7:24 pm #

    dunstvangeet:

    You’re mistaken (again). I’ve not quoted Minor v Happersett but in any event you’re mistaken about its meaning. If you’ll study the decision you’ll see that it says there is no doubt about the natural born citizen classification of those born of 2 US citizen parents on US soil but that with other situations there is some doubt.

    Many states operated independently with respect to citizen issues (some using the “subject” term) which was eventually corrected by the 14th Amendment to make things more uniform. The states may have looked them as “subjects” (which originated from English law) but with respect to the nation at large these state’s subjects were converted to “citizens” since the national government did not have “subjects”. You need to read up on American history more thoroughly.

    None of that helps Mr. Obama show that he is eligible to hold the office he now occupies, though … nor do your efforts to “protect” an illegal President. It merely makes you an Enabler (and, quite possibly a traitor to your own country).

  14. avatar
    jtx August 12, 2009 at 7:30 pm #

    Rickey:

    Sorry but you’ve mixed me up with another of your Flying Monkey Squad as I certainly know the difference between “subject” and “citizen”. Perhaps you should explain that to “dunstvangeet” who clearly seems to not know the difference.

    In any event there is actually a lot of background about Vattel’s influence at founding time. Regardless, though, none of that will help Obama show himself to be eligible to occupy the office he now holds (unless perhaps he’s lied to everyone – including you – about almost everything). And even then there would be much doubt I’d think.

    Or are your calling the subject of your frantic Enabling Conspiracy a liar???

  15. avatar
    jtx August 12, 2009 at 7:34 pm #

    dunstvangeet:

    Go read this link and re-think what you’ve just pontificated:

    http://birthers.org/misc/logic.htm

    Breaking down a dictionary definition into component parts is complete nonsense as “natural born citizen” was a term of art at the founding of the country, not a composite of definitions from a dictionary.

  16. avatar
    jtx August 12, 2009 at 7:35 pm #

    kimba:

    You need to do more research into the matter rather than just read the NYT articles.

  17. avatar
    jtx August 12, 2009 at 7:39 pm #

    jvn:

    Au contraire (even as Vattel described it); there is much evidence that such is exactly what they did.

    Study this link in some detail:

    http://birthers.org/misc/logic.htm

  18. avatar
    Bob August 12, 2009 at 7:51 pm #

    Oooohh!…pretty graphics that have no basis in law.

    Still: pretty….

    (And, dude: That’s already been linked to here; no need to do in every post you make, Mr. Groundhog Day.)

  19. avatar
    kimba August 12, 2009 at 8:13 pm #

    Here’s the where the flying monkeys are coming from jtx

    http://politicalhumor.about.com/od/politicalcartoons/ig/Political-Cartoons/Releasing-Flying-Monkeys.htm

  20. avatar
    Alix Cavanaugh August 12, 2009 at 8:39 pm #

    Dear Dr Conspiracy:

    I agree with the overwhelming majority of your analysis, but I don’t think you’re quite right about the origins of “natural born”.

    First, a side point. The history of British nationality law is very complicated, and I’m not an expert on it, but (I think this is only slightly simplified): it’s misleading to say that eighteenth-century British law recognized a distinction between naturalized citizens and natural-born citizens. The common law does not recognize naturalization at all, and until the mid-nineteenth century there were no statutes of general applicability providing for the acquisition of the British subjecthood by one not (a) born in the realm or (b) covered by De natis ultra mare 1351 or the various later statutes concerning people of English parentage born abroad.

    Of course, the sovereign could *denizate* an alien (and presumably still can, although there would be no reason for the power to be used now), which enabled the alien to own property, but could not make an alien a subject.

    Thus, before (if I remember correctly) the Naturalization Act 1870, the only way an alien could become a subject was through a private Act of Parliament. So there was no class of “naturalized subjects” as such recognized by the law: there were only individuals who had become naturalized (singly or in groups) in virtue of Parliament’s omnipotent power. Whether the naturalization was retroactive to birth would, I believe, depend on the language of the relevant act and appropriate principles of statutory construction; I’m not sure a general answer can be given.

    On the main point, however — the source and meaning of the phrase ‘natural born’ — I think one can be much less tentative.

    ‘Natural’, in this usage, simply means what the etymology suggests: “by birth” — ‘natural subject’, ‘native subject’, ‘natural-born subject’, ‘native-born subject’, ‘born subject’, ‘true-born subject’, etc. (all forms that can be found fairly early on) all mean simply “subject by birth”. There is no semantic distinction among them.

    This is a very common meaning of ‘natural’, particularly in early use: see OED, s.v. ‘natural’, defs. 14-17. Moreover, the phrase ‘natural subject’ corresponds exactly to a common mediaeval Latin phrase, *civis naturalis*, meaning, of course, ‘subject by birth’– which, I believe, originated with Baldus of Sassoferato. (Joseph Canning discusses Baldus’ theory of citizenship at some length in his book on Baldus, which I unfortunately do not have with me, so I can’t give a page number. In any case, I’m fairly sure this use of *civis naturalis* is strictly post-Classical: the Romans said *civis natus*, as appears in Cicero, but that is just ordinary Latin and not any kind of technical or legal term.)

    So — ‘natural citizen’ or ‘native citizen’ is the straightforward way of rendering ‘civis naturalis’ into a somewhat Latinate English; ‘born citizen’ is the straightforward way of translating it into a slightly more Anglo-Saxon lexicon. ‘Natural-born’ and ‘native-born’ simply join the two, as is not uncommon in English etymology.

  21. avatar
    dunstvangeet August 12, 2009 at 8:51 pm #

    Why not. It has about as much basis in law as your pet theories of what the founders actually meant. Furthermore, there is a reason why the process is called Naturalization. Why is Naturalization called Naturalization? Naturalization means the process to make someone Natural.

    So, people who are made citizens later are actually being made Naturalized. Therefore, it stands to argue that all citizens are Natural citizens. Then Natural Born Citizens are Natural Citizens who were born. Naturalized Citizens are citizens who were made Naturalized.

    What you’re stating is that there are citizens who are not Natural Citizens. That is not a supposition that is supported by law.

  22. avatar
    dunstvangeet August 12, 2009 at 9:08 pm #

    JTX, why don’t you suggest that to the Citizens of Vermont, who had their constitution originally say SUBJECT.

    Each of those constitutions were after the revolution started. Most of these constitutions were helped written by the very same people who wrote the Constitution, and there’s at least one of them that was written after the constitution (Vermont) was written. Do you really believe that Vermont didn’t want it’s citizens to be Natural-Born citizens of the United States?

  23. avatar
    Dr. Conspiracy August 12, 2009 at 9:12 pm #

    Alix,

    Full agreement that British nationality law is very complicated. There was legislation prior to 1870 that addresses naturalization without private bills. In 1740 Parliament passed “An Act for naturalizing such foreign Protestants, and others therein mentioned, as are settled, or shall settle in any of his Majesty’s Colonies in America”. This made prospective colonists: “Partakers of the Advantages and Privileges which the natural born Subjects of this realm do enjoy.” 13 Geo. II, c. 7 (1740).

  24. avatar
    Rickey August 12, 2009 at 9:15 pm #

    jtx,

    The only difference between “citizen” and “subject” is that citizens live in self-governing countries and subjects live in countries which are ruled by monarchs. Otherwise, the words are synonymous, contrary to your erroneous assertion.

    And I would like to see EVIDENCE that the Founders were influenced in any meaningful way by Vattel. Show me an example of one of the Founders citing Vattel as an influence. Just one. I, on the other hand, can cite numerous examples of the Founders acknowledging that they were influenced by Blackstone.

    And, to put your mind at ease, I have no doubt that Obama was being entirely truthful when he said that his father was a British citizen at the time of Obama’s birth. But that fact is irrelevant, because Obama is a natural born citizen of the United States regardless of his father’s citizenship.

  25. avatar
    Greg August 12, 2009 at 9:39 pm #

    ~~ “natural born citizen” was a term of art

    Well, “natural born subject” was a term of art. And “indigenes” was a term used in the only English language translation of Vattel in use at the time.

    If the Founders wanted to completely reverse the meaning of “natural born” when used in “natural born subject,” why didn’t they say “indigenes” in the Constitution? Then, everyone would have known they were adopting Vattel’s conception of citizenship!

    Silly founders, mixing their terms of art!

  26. avatar
    jtx August 12, 2009 at 10:10 pm #

    kimba:

    Nice pic of the first lady there!!

  27. avatar
    jtx August 12, 2009 at 10:16 pm #

    dunstvangeet:

    Clearly you’ve not done much investigation as subject was often used up until the clarification of the 14th amendment which “citizenized” things.

    And just to clarify it for you, actually none of the states using “subjects” were using it correctly after the Constitution became the law of the land. There was no “sovereign” to be “subject” to … all former subjects became citizens, basically.

    You probably didn’t know this, but’s why we did the Rev War thingy – to kick out sovereigns … you didn’t know that???

  28. avatar
    strikefighter August 12, 2009 at 10:22 pm #

    JTX:

    So, this is the maturity level we can expect from you? Really? Insulting the first lady?

    Jackass…

  29. avatar
    markcon August 13, 2009 at 3:23 am #

    understood as conveying the idea of membership of a nation, and nothing more.”

    destroys your own argument-all these states-showing membership only

    if nbs and nbc was the same than in the LAWS would all say nbc but they dont- the term is only used for president qualifications.

    you quote common law also in the states before the constitution-in some of the post- duh we was part of the empire than- tired of you guys quoting the same cases we do but twist it

    finally – if you use native and naturalized several times in a paragraph and use naturalborn too they are meant to be 3 different things

  30. avatar
    markcon August 13, 2009 at 3:27 am #

    well that would mean a naturlized person could be president-NOT

  31. avatar
    markcon August 13, 2009 at 3:35 am #

    “citizens born of parents who were citizens””HE WAS WRITING ABOUT THOSE WHO WERE CITIZENS AT BIRTH.”

    WOW YOU FINALLY HAVE IT RIGHT
    born of parentS who were citizens was your clue?
    hmmm doesnt sound like obama hahaha

    the only time a natural born subject of england (obama) was legal to be president was at the time when they sign the constitution

  32. avatar
    Greg August 13, 2009 at 5:36 am #

    No. There are natural born and naturalized citizens. Naturalized citizens cannot be President. Under the Constitution there are no other options. There’s not a single hint that the Founders thought there could be a native-born-but-not-natural-born citizen.

  33. avatar
    Greg August 13, 2009 at 5:39 am #

    Until recently, Britain did not care if you were naturalized in another country, they did not believe you could get rid of your “natural born subject” status. So, under that rule, even if Obama Sr. had naturalized in the US, Britain would have considered Obama Jr. to be a British citizen.

  34. avatar
    Greg August 13, 2009 at 5:42 am #

    Some laws use natural born subject, some say natural born citizen. It’s not used just for Presidential eligibility. For example, the Naturalization Law of 1790 said that anyone born abroad to American Citizens would be considered a Natural Born Citizen.

    Why don’t you go to a library instead of just pulling things out of your nether regions?

  35. avatar
    Greg August 13, 2009 at 6:20 am #

    How come you know the distinction between subject and citizen but the people writing the States’ Constitutions didn’t? These were often the same people who wrote the United States Constitution.

  36. avatar
    kimba August 13, 2009 at 7:33 am #

    NYT articles? Really, jtx, what self-respecting conservative refers to the NYT. You apparently learned everything you know about Franklin with the French from watching HBO’s John Adams.

  37. avatar
    Dr. Conspiracy August 13, 2009 at 7:58 am #

    The reason that one does not see “natural born citizen” in legislation, is because under our laws natural born citizens and naturalized citizens are on equal footing (excepting presidential and vice-presidential eligibility). But as pointed out elsewhere the Immigration Act of 1790 does mention “natural born citizen” and there well may be others I’m not aware of. Certainly the courts mention the phrase often enough, and not in cases dealing with presidential eligibility.

  38. avatar
    jtx August 13, 2009 at 11:34 am #

    strikefighter:

    T’wern’t me who posted her picture guy!!

    … as for “jackass” – it takes one to know one!!

  39. avatar
    kimba August 13, 2009 at 11:40 am #

    jtx, you are not just a racist troll, you are a f@cking pig.

  40. avatar
    Heavy August 13, 2009 at 11:48 am #

    Kimba, that’s not very ladylike.

  41. avatar
    SFJeff August 13, 2009 at 1:22 pm #

    “No matter the BC (or lack thereof) using the man’s own admission against interest he is not legally eligible to hold the office he now occupies.”

    British law doesn’t matter. For a person who is so quick to reply, how come not once- not once mind you- have you ever been able to cite any authority who agrees with your looney theory? Because no authority does agree with you.

    “Oh, and it’s not ME it’s “working out for” but the entire country. Perhaps a few of you Enablers (who are the REAL “conspiracy engagers” by trhing to keep this guy in power) think it’s “neat-o” to have an illegal guy as President but I’d think that 70-80% of Americans would not agree.”

    We are merely protecting the constitution from those who advocate trashing it. Senator Obama was legally elected President of the United States. He satisified the secretaries of state of each state that he was qualified. His election was ratified by Congress. He was sworn in by the Chief Justice of the Supreme Court. He is our legal president. He has met all legal requirements to demonstrate his eligibility.

    You and the rest of the Flying Freaks are looking for extra-constitutional ways to remove President Obama from office.

    Unfortunately for you, the two legal methods both require democratic processes- either election or impeachment.

  42. avatar
    dunstvangeet August 13, 2009 at 1:52 pm #

    No, because Naturalized citizens are not Natural Born Citizens. They are Natural Citizens, but they were not born being a Natural Citizen, so they are not Natural Born Citizen.

    A Natural Born Citizen is a citizen from birth.

    A Naturalized Citizen is a citizen who was made a citizen later.

    There are no other options.

  43. avatar
    dunstvangeet August 13, 2009 at 1:54 pm #

    Markcon, the point is that if the Founders used de Vattel, then the only citizens from birth would be people born to 2 citizen parents. That’s not the case here, as ruled by U.S. v. Wong Kim Ark.

  44. avatar
    markcon August 13, 2009 at 3:47 pm #

    leaving out info to spin it your way – how dishonest
    that Act was repealed in 1795 and and nbc was changed to citizen- a correction- not proof it means the same as citizen- cuz there is NO other reference in law none- other than saying nbc is not being considered( again a distinction)

    equal footing as citizen — right–(excepting presidential and vice-presidential eligibility).right!
    natural born is the distinction (exception)

  45. avatar
    markcon August 13, 2009 at 4:01 pm #

    nevermind i shouldnt of made the comment but glad i did.

    greg said “There’s not a single hint that the Founders thought there could be a native-born-but-not-natural-born citizen.”

    is an out right lie.

  46. avatar
    markcon August 13, 2009 at 4:09 pm #

    huh wong kim ark was ruled a citizen(not natural born) because born here- AND (which you people conveniently forget) 2 permently domociled parent(under the jurisdiction there of)

  47. avatar
    Heavy August 13, 2009 at 4:13 pm #

    Liberal=Liar

  48. avatar
    Greg August 13, 2009 at 4:14 pm #

    “cuz there is NO other reference in law none-”

    Wanna wager?

    New York’s Naturalization laws of 1806, 1807, 1808, 1812, and 1825, said that naturalization would give the same rights as those held by a “natural born citizen.” The law of 1836 said that aliens could hold land as if naturalized or a “natural born citizen,” there is no third option.

    New Jersey’s immigration law of 1836 also refered to “natural born citizen.”

    Pennsylvania’s immigration law of 1799, 1807 and 1818 also said “natural born citizen.” In their election laws, electors had to swear they were a “natural born citizen” of Pennsylvania or one of the other states, or an alien who had been naturalized. There is no other option.

    Other states used natural born subject or native born citizen or free born citizen. They all meant the same thing.

    “if you use native and naturalized several times in a paragraph and use naturalborn too they are meant to be 3 different things”

    What about this paragraph:

    Native and Natural Born mean the same thing. Both Native and Natural Born are different from naturalized. Did I mention that Native Born and Natural Born are exactly equivalent terms?

    I’ve used all three words, but I don’t think you can necessarily conclude that I meant three different things.

  49. avatar
    Heavy August 13, 2009 at 4:15 pm #

    Details, details!

  50. avatar
    Bob August 13, 2009 at 4:17 pm #

    is an out right lie.

    And what law supports that conclusion of yours?

  51. avatar
    Greg August 13, 2009 at 4:21 pm #

    Show me. Show me a single founder saying that there were native born people and natural born people and that someone could be born a native-born citizen but not be eligible to become President.

    How about you, Heavy? Do you have anything other than the stuff you’ve pulled out of your orifice to back up your claims?

    Yeah, I didn’t think so. Not a whit of evidence.

  52. avatar
    Greg August 13, 2009 at 4:25 pm #

    The dissent in Wong Kim Ark thought the majority was making the same rule as the British, that an alien could come here and have a child on vacation and that child would be a natural born citizen of the United States.

    You’re claiming that YOU are better at reading the law than the Chief Justice at the time and Justice Harlan?

    Given that you cannot even WRITE standard English, I’m going to go with NO!

    A permanent domicile was not a requirement of Wong Kim Ark, any more than you can limit it to Chinese people only.

  53. avatar
    Dr. Conspiracy August 13, 2009 at 9:13 pm #

    Exactly what does that “permently[sic] domociled[sic]” mean, in the light of the FACT that they “permanently returned” to China in 1890?

    Birthers …. [nevermind].

  54. avatar
    markcon August 13, 2009 at 10:03 pm #

    they returned after the courts decision.

  55. avatar
    markcon August 13, 2009 at 10:04 pm #

    #

    ]
    #
    Ken Dunbar Says:
    August 13, 2009 at 7:59 pm

    “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
    – US Constitution, 1787

    Blackstone’s natural born subjects

    Did the framers of the US Constitution take the meaning of “natural born subject”, of English common law, for the meaning of the term “natural born citizen”?

    Most people, who say yes to the question, say more simply that a natural born citizen is any person born in the country.

    This appears to agree with William Blackstone’s Commentaries on the Laws of England which states that “Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.” [1]

    And their defense rests.

    But Blackstone goes further.

    In that same “Citizenship” section of Commentaries, there are other ways to be declared a natural born subject. And to accept the common law view for the “American natural born citizen” definition, one must accept all that is said for the British natural born subject.

    Per Blackstone, natural born subjects are:

    “such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king

    all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception;

    The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.

    To accept one is to accept all.

    The framers of the Constitution, who were born of British parents in England, or in one of Her colonies, were without doubt natural born subjects. They wanted the “Command of the American army” [2] to never be given to a foreigner; and so they made one of the requirements for the President be that “No Person except a natural born Citizen”.
    (Wisely, they included the grandfather clause so that the country could have a President sooner than A.D. 1811.)
    ——————————————————

    Let us examine these three ways to be a natural born subject of England in 1765, described in Blackstone’s Commentaries; and how this might relate to being an American “natural born citizen”. Let us begin with the second.
    all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception;

    In 1790, the US Congress of 1790’s “Rule of Naturalization” was passed that included:

    “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens” [3]

    Why would Congress in 1790 have to make such a law if it were all ready understood that natural born citizens, just as British natural born subjects, could be born outside the borders?

    Five years later, Congress repealed this law, and changed it to be that such children would be “considered as Citizens”. The US Congress rejected that children born outside the United States would be natural born citizens.

    Why would Congress five years later repeal this law, if they understood that natural born citizens, just as British natural born subjects, could be born outside the borders?

    In the current State Department’s Foreign Affairs Manual, when speaking on “Eligibility for Presidency”,

    a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency. [4]

    Why should any court need to determine this definitively, if it were known and accepted by the government that “natural born citizen” was taken from “natural born subject”?

    In that same section of the Foreign Affairs Manual, part .c references the 1790 Act; and part .d says correctly that it is “ no longer operative, however, and its formula is not
    included in modern nationality statutes.” Yes, for only five years from 1790 to 1795 it was operative, and has not been operative since then.

    On February 2008, Senator Claire McCaskill introduced bill S. 2678 to the 110th Congress (Senate), called “Children of Military Families Natural Born Citizen Act”, for the purpose of creating a law that would include in the definition of natural born citizen: “Any person born to any citizen of the United States while serving in the active or reserve components of the United States Armed Forces’.” [5]
    This bill was soon discarded; and the Senate, still ignoring the Foreign Affairs Manual, and bi-passing the court system, “Resolved, That John Sidney McCain, III, is a natural born Citizen’ under Article II, Section 1, of the Constitution of the United States.” [6]

    How can John McCain, or anyone born on a military installation, be considered a natural born citizen, when the Foreign Affairs Manual is clear that:

    “ c. Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.” [7]

    As flowery of speech as that Senate resolution was, the Senate alone does not make laws. It can ignore our laws, but cannot make laws on its own.

    And thus we see that while some “natural born subjects” in England could be “born out of the king’s ligeance, whose fathers were natural-born subjects,”, there is proof that American “natural born citizens” cannot be born out of the jurisdiction of the United States.

    ——————————————————

    That was the second way to be a natural born subject of England in 1765, described in Blackstone’s Commentaries; and how this might relate to being an American “natural born citizen” Let us address the third.

    The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such

    In 1868, section 1992 of U.S. Revised Statutes was very clear that, “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.” [8]

    In other words, in 1868, the children of aliens, born here in the United States, were not citizens, because they were subject to the foreign power of their parents.

    Speaking of section 1992, when it was being discussed in Congress, before becoming law, Congressman John Bingham, father of the 14th amendment, said, “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”[9]

    If the framers of the Constitution were “greedy”, like the British, to accept aliens’ children born in the country as natural born citizens, how did section 1992 become law? Why would Congress limit the potential number of natural born citizens this way?

    The 14th amendment states:

    “Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

    Those who embrace the “all persons born here are natural born” neglect to read the portion “subject to the jurisdiction thereof”.

    The meaning is easy to know, if one asks the men who discussed it in Congress while it was being drafted.

    Senator Jacob Howard, before the Senate, on the then “House joint resolution 127”.

    “Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.” [10]

    The Supreme Court of 1884 in the case ELK v. WILKINS, 112 U.S. 94 is equally clear regarding aliens born in the United States.

    “This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared [112 U.S. 94, 102] to be citizens are all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” [11]

    And thus, while some “natural born subjects” could be “The children of aliens, born here in England,”, there is proof that in the United States, “citizens” at birth, could not be subject to foreign power, and had to be, not only born in the United States, but also subject to the jurisdiction thereof the United States.
    Could there be a less standard for the American “natural born citizen”?

    ——————————————————

    That was the third way to be a natural born subject of England in 1765, described in Blackstone’s Commentaries; and how it might relate to American citizenship. Before discussing the first way, a short word on dual nationality.

    In 1783, after the Treaty of Paris, which ended the War of Independence, “Thomas Jefferson’s Notes” discusses if an American adult male citizen (now an alien to the British crown) may inherit his British father’s lands in England.

    “Natural subjects can inherit – Aliens cannot. There is no middle character — every man must be the one or the other of these.
    A Natural subject is one born within the king’s allegiance & still owing allegiance. No instance can be produced in the English law, nor can it admit the idea of a person’s being a natural subject and yet not owing allegiance.
    An alien is the subject or citizen of a foreign power.” [12]

    In 1866, in the case United States vs. Rhodes, Circuit Justice Swayne gave that same view.

    “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.” [13]

    Even today we speak of “allegiance”: in the Pledge recited by citizens, and the Oath of Allegiance by those being naturalized.

    “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen;…” [14]

    Naturalized citizens have one citizenship only. Their only allegiance is to the United States. How can a “natural born citizen” have two allegiances at birth and be a natural born citizen?

    Recall that in 1795, Congress accepted that such a person, born of American parents “beyond Sea”, shall be considered a “citizen”, but not “natural born citizen”. (The 1790 Act had been changed.) Such a person would have the nationality of that foreign land, and the citizenship of the American parents. This dual national at birth was not a natural born citizen.

    ——————————————————

    Finally, we address the first way to be a natural born subject of England in 1765, described in Blackstone’s Commentaries; and how this might relate to being an American “natural born citizen”.

    “such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king

    It should be evident that this means more than simply jus soli, in that allegiance is mentioned.
    [Jus soli would include this first way (born within the dominions, within the allegiance) and and the third way (born in England of aliens).]

    Blackstone himself explains allegiance as being two types, one permanent and one temporary. Our Founding Fathers certainly disagreed with the British common law, as explained by Blackstone, on “natural allegiance”.

    “Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due.” [15]

    The United States of America fought two wars with England, over this dispute.

    And our Founding Fathers certainly disagreed with the common law, as explained by Blackstone, on “local allegiance” also.

    “Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another.”[16]

    The British “local allegiance of the stranger born” led directly to that third way to be a “natural born subject” (born in England, of aliens), which I showed was an idea rejected by the United States when it:
    refused citizenship to persons born in the United States and subject to a foreign power,
    debated that the 14th amendment “under the jurisdiction of” did not include “persons born in the United States who are foreigners, aliens.

    Conclusion:

    To say that the American “natural born citizen” came directly from the British common law “natural born subject” is to reject our American history.

    The United States rejected the British common law concept of natural born subject, in that an American citizen could discharge his allegiance.

    The United States rejected the British common law concept of natural born subject, in that an American natural born citizen could not be born “beyond Sea”.

    The United States rejected the British common law concept of natural born subject, in that foreigners could not birth American citizens.

    [1] Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769. (Citizenship)
    http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships1.html

    [2] John Jay letter to George Washington, July 25, 1787
    http://www.familytales.org/dbDisplay.php?id=ltr_joj4101&person=joj

    [3] Rule of Nationalization, 1790

    [4] 7 FAM 1131.6-2 Eligibility for Presidency
    (TL:CON-68; 04-01-1998)
    http://www.state.gov/documents/organization/86757.pdf
    [5] S. 2678, To clarify the law and ensure that children born to United States citizens while serving overseas in the military are eligible to become President http://www.govtrack.us/congress/billtext.xpd?bill=s110-2678
    [6] Senate Resolution 511, April 2008
    http://leahy.senate.gov/press/200804/041008c.html

    [7] 7 FAM 1116.1-4 Not Included in the Meaning of “In the United States”
    (TL:CON-64; 11-30-95)
    http://www.state.gov/documents/organization/86755.pdf

    [8] Sec. 1992 of U.S. Revised Statutes, 1868 http://famguardian.org/TaxFreedom/CitesByTopic/expatriation-RS1999-1868.pdf

    [9] Rep. John Bingham before The US House of Representatives (Cong. Globe, 39th, 1st Sess., 1291, March 9, 1866) http://en.wikipedia.org/wiki/John_Bingham

    [10] Sen. Jacob Howard (Cong Globe May 30, 1866)
    http://www.14thamendment.us/articles/jacob_howard_on_14th_amendment_1866.gif

    [11] Elk v Wilkins (1884)
    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=112&invol=94

    [12] Letter 151: Jefferson Notes, http://etext.lib.virginia.edu/toc/modeng/public/DelVol21.html

    [13] -Circuit Justice Swayne, in United States vs Rhodes (1866)
    http://www.thecommentary.net/1861-circuit-justice-swayne-defines-natural-born-citizen

    [14] Oath of Allegiance for Naturalized Citizens
    http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=931696981298d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=d6f4194d3e88d010VgnVCM10000048f3d6a1RCRD

    [15]Blackstone, William. Commentaries on the Laws of England. Book One chapter 10
    http://www.lonang.com/exlibris/blackstone/b la-110.htm

    [16] Blackstone, William. Commentaries on the Laws of England. Book One chapter 10
    http://www.lonang.com/exlibris/blackstone/b la-110.htm

  56. avatar
    Dr. Conspiracy August 13, 2009 at 10:09 pm #

    markcon: they [Wong Kim Ark’s parents] returned [to China] after the courts [sic] decision.

    That would be quite a stretch for them to go to China in 1890 after the Court’s decision in 1898.

    How do you get along in life with so little critical judgment?

  57. avatar
    markcon August 13, 2009 at 10:20 pm #

    Ken Dunbar Says:
    August 13, 2009 at 7:59 pm

    “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
    – US Constitution, 1787

    Blackstone’s natural born subjects

    Did the framers of the US Constitution take the meaning of “natural born subject”, of English common law, for the meaning of the term “natural born citizen”?

    Most people, who say yes to the question, say more simply that a natural born citizen is any person born in the country.

    This appears to agree with William Blackstone’s Commentaries on the Laws of England which states that “Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.” [1]

    And their defense rests.

    But Blackstone goes further.

    In that same “Citizenship” section of Commentaries, there are other ways to be declared a natural born subject. And to accept the common law view for the “American natural born citizen” definition, one must accept all that is said for the British natural born subject.

    Per Blackstone, natural born subjects are:

    “such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king

    all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception;

    The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.

    To accept one is to accept all.

    The framers of the Constitution, who were born of British parents in England, or in one of Her colonies, were without doubt natural born subjects. They wanted the “Command of the American army” [2] to never be given to a foreigner; and so they made one of the requirements for the President be that “No Person except a natural born Citizen”.
    (Wisely, they included the grandfather clause so that the country could have a President sooner than A.D. 1811.)
    ——————————————————

    Let us examine these three ways to be a natural born subject of England in 1765, described in Blackstone’s Commentaries; and how this might relate to being an American “natural born citizen”. Let us begin with the second.
    all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception;

    In 1790, the US Congress of 1790’s “Rule of Naturalization” was passed that included:

    “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens” [3]

    Why would Congress in 1790 have to make such a law if it were all ready understood that natural born citizens, just as British natural born subjects, could be born outside the borders?

    Five years later, Congress repealed this law, and changed it to be that such children would be “considered as Citizens”. The US Congress rejected that children born outside the United States would be natural born citizens.

    Why would Congress five years later repeal this law, if they understood that natural born citizens, just as British natural born subjects, could be born outside the borders?

    In the current State Department’s Foreign Affairs Manual, when speaking on “Eligibility for Presidency”,

    a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency. [4]

    Why should any court need to determine this definitively, if it were known and accepted by the government that “natural born citizen” was taken from “natural born subject”?

    In that same section of the Foreign Affairs Manual, part .c references the 1790 Act; and part .d says correctly that it is “ no longer operative, however, and its formula is not
    included in modern nationality statutes.” Yes, for only five years from 1790 to 1795 it was operative, and has not been operative since then.

    On February 2008, Senator Claire McCaskill introduced bill S. 2678 to the 110th Congress (Senate), called “Children of Military Families Natural Born Citizen Act”, for the purpose of creating a law that would include in the definition of natural born citizen: “Any person born to any citizen of the United States while serving in the active or reserve components of the United States Armed Forces’.” [5]
    This bill was soon discarded; and the Senate, still ignoring the Foreign Affairs Manual, and bi-passing the court system, “Resolved, That John Sidney McCain, III, is a natural born Citizen’ under Article II, Section 1, of the Constitution of the United States.” [6]

    How can John McCain, or anyone born on a military installation, be considered a natural born citizen, when the Foreign Affairs Manual is clear that:

    “ c. Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.” [7]

    As flowery of speech as that Senate resolution was, the Senate alone does not make laws. It can ignore our laws, but cannot make laws on its own.

    And thus we see that while some “natural born subjects” in England could be “born out of the king’s ligeance, whose fathers were natural-born subjects,”, there is proof that American “natural born citizens” cannot be born out of the jurisdiction of the United States.

    ——————————————————

    That was the second way to be a natural born subject of England in 1765, described in Blackstone’s Commentaries; and how this might relate to being an American “natural born citizen” Let us address the third.

    The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such

    In 1868, section 1992 of U.S. Revised Statutes was very clear that, “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.” [8]

    In other words, in 1868, the children of aliens, born here in the United States, were not citizens, because they were subject to the foreign power of their parents.

    Speaking of section 1992, when it was being discussed in Congress, before becoming law, Congressman John Bingham, father of the 14th amendment, said, “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”[9]

    If the framers of the Constitution were “greedy”, like the British, to accept aliens’ children born in the country as natural born citizens, how did section 1992 become law? Why would Congress limit the potential number of natural born citizens this way?

    The 14th amendment states:

    “Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

    Those who embrace the “all persons born here are natural born” neglect to read the portion “subject to the jurisdiction thereof”.

    The meaning is easy to know, if one asks the men who discussed it in Congress while it was being drafted.

    Senator Jacob Howard, before the Senate, on the then “House joint resolution 127”.

    “Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.” [10]

    The Supreme Court of 1884 in the case ELK v. WILKINS, 112 U.S. 94 is equally clear regarding aliens born in the United States.

    “This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared [112 U.S. 94, 102] to be citizens are all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” [11]

    And thus, while some “natural born subjects” could be “The children of aliens, born here in England,”, there is proof that in the United States, “citizens” at birth, could not be subject to foreign power, and had to be, not only born in the United States, but also subject to the jurisdiction thereof the United States.
    Could there be a less standard for the American “natural born citizen”?

    ——————————————————

    That was the third way to be a natural born subject of England in 1765, described in Blackstone’s Commentaries; and how it might relate to American citizenship. Before discussing the first way, a short word on dual nationality.

    In 1783, after the Treaty of Paris, which ended the War of Independence, “Thomas Jefferson’s Notes” discusses if an American adult male citizen (now an alien to the British crown) may inherit his British father’s lands in England.

    “Natural subjects can inherit – Aliens cannot. There is no middle character — every man must be the one or the other of these.
    A Natural subject is one born within the king’s allegiance & still owing allegiance. No instance can be produced in the English law, nor can it admit the idea of a person’s being a natural subject and yet not owing allegiance.
    An alien is the subject or citizen of a foreign power.” [12]

    In 1866, in the case United States vs. Rhodes, Circuit Justice Swayne gave that same view.

    “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.” [13]

    Even today we speak of “allegiance”: in the Pledge recited by citizens, and the Oath of Allegiance by those being naturalized.

    “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen;…” [14]

    Naturalized citizens have one citizenship only. Their only allegiance is to the United States. How can a “natural born citizen” have two allegiances at birth and be a natural born citizen?

    Recall that in 1795, Congress accepted that such a person, born of American parents “beyond Sea”, shall be considered a “citizen”, but not “natural born citizen”. (The 1790 Act had been changed.) Such a person would have the nationality of that foreign land, and the citizenship of the American parents. This dual national at birth was not a natural born citizen.

    ——————————————————

    Finally, we address the first way to be a natural born subject of England in 1765, described in Blackstone’s Commentaries; and how this might relate to being an American “natural born citizen”.

    “such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king

    It should be evident that this means more than simply jus soli, in that allegiance is mentioned.
    [Jus soli would include this first way (born within the dominions, within the allegiance) and and the third way (born in England of aliens).]

    Blackstone himself explains allegiance as being two types, one permanent and one temporary. Our Founding Fathers certainly disagreed with the British common law, as explained by Blackstone, on “natural allegiance”.

    “Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth. For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due.” [15]

    The United States of America fought two wars with England, over this dispute.

    And our Founding Fathers certainly disagreed with the common law, as explained by Blackstone, on “local allegiance” also.

    “Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another.”[16]

    The British “local allegiance of the stranger born” led directly to that third way to be a “natural born subject” (born in England, of aliens), which I showed was an idea rejected by the United States when it:
    refused citizenship to persons born in the United States and subject to a foreign power,
    debated that the 14th amendment “under the jurisdiction of” did not include “persons born in the United States who are foreigners, aliens.

    Conclusion:

    To say that the American “natural born citizen” came directly from the British common law “natural born subject” is to reject our American history.

    The United States rejected the British common law concept of natural born subject, in that an American citizen could discharge his allegiance.

    The United States rejected the British common law concept of natural born subject, in that an American natural born citizen could not be born “beyond Sea”.

    The United States rejected the British common law concept of natural born subject, in that foreigners could not birth American citizens.

    [

  58. avatar
    markcon August 13, 2009 at 10:20 pm #

    1] Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769. (Citizenship)
    http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships1.html

    [2] John Jay letter to George Washington, July 25, 1787
    http://www.familytales.org/dbDisplay.php?id=ltr_joj4101&person=joj

    [3] Rule of Nationalization, 1790

    [4] 7 FAM 1131.6-2 Eligibility for Presidency
    (TL:CON-68; 04-01-1998)
    http://www.state.gov/documents/organization/86757.pdf
    [5] S. 2678, To clarify the law and ensure that children born to United States citizens while serving overseas in the military are eligible to become President http://www.govtrack.us/congress/billtext.xpd?bill=s110-2678
    [6] Senate Resolution 511, April 2008
    http://leahy.senate.gov/press/200804/041008c.html

    [7] 7 FAM 1116.1-4 Not Included in the Meaning of “In the United States”
    (TL:CON-64; 11-30-95)
    http://www.state.gov/documents/organization/86755.pdf

    [8] Sec. 1992 of U.S. Revised Statutes, 1868 http://famguardian.org/TaxFreedom/CitesByTopic/expatriation-RS1999-1868.pdf

    [9] Rep. John Bingham before The US House of Representatives (Cong. Globe, 39th, 1st Sess., 1291, March 9, 1866) http://en.wikipedia.org/wiki/John_Bingham

    [10] Sen. Jacob Howard (Cong Globe May 30, 1866)
    http://www.14thamendment.us/articles/jacob_howard_on_14th_amendment_1866.gif

    [11] Elk v Wilkins (1884)
    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=112&invol=94

    [12] Letter 151: Jefferson Notes, http://etext.lib.virginia.edu/toc/modeng/public/DelVol21.html

    [13] -Circuit Justice Swayne, in United States vs Rhodes (1866)
    http://www.thecommentary.net/1861-circuit-justice-swayne-defines-natural-born-citizen

    [14] Oath of Allegiance for Naturalized Citizens
    http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=931696981298d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=d6f4194d3e88d010VgnVCM10000048f3d6a1RCRD

    [15]Blackstone, William. Commentaries on the Laws of England. Book One chapter 10
    http://www.lonang.com/exlibris/blackstone/b la-110.htm

    [16] Blackstone, William. Commentaries on the Laws of England. Book One chapter 10
    http://www.lonang.com/exlibris/blackstone/b la-110.htm

  59. avatar
    Dr. Conspiracy August 13, 2009 at 10:25 pm #

    But of course that is not what I am saying. “Natural born citizen” is anyone who is a citizen at the time of their birth. These are all those described by Blackstone, in contrast to the naturalized citizens who became citizens later.

    Dunbar has never understood the legal definition of “allegiance” and that undercuts all of his argument. The allegiance of anyone born in the United States (not exempted from our jurisdiction) is immediate and absolute (or so the Supreme Court said).

  60. avatar
    Greg August 13, 2009 at 10:25 pm #

    From the facts of the case:

    “Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him therefrom.”

    So, according to the Court, they did have a permanent domicile at the time of WKA’s birth.

    But, that’s no more important to the decision than the fact that they’re Chinese.

    There are only two ways to get citizenship the Court says, birth within the jurisdiction of the US, or naturalization. The only people born here outside our jurisdiction are the children of ambassadors – they cannot be tried in our courts, they aren’t subject to our laws. Otherwise, born here = citizen.

  61. avatar
    Greg August 13, 2009 at 10:31 pm #

    “Why would Congress in 1790 have to make such a law if it were all ready understood that natural born citizens, just as British natural born subjects, could be born outside the borders?”

    Many of the commentators at the time said it was simply declaratory of the common law.

    This debate was actually recapitulated in the 1860s. You can read about it in Lynch v. Clarke.

    Yes, the nation eventually rejected the permanent allegiance bound up in British common law of citizenship, but there’s not a whit of evidence that they rejected other parts of common law.

  62. avatar
    Dr. Conspiracy August 13, 2009 at 11:31 pm #

    Which is why the facts of the case clearly exclude Wong’s parents as ambassadors.

    I wonder if “permanent domicile” meant that they had a house, as opposed to being migrant workers.

  63. avatar
    Dr. Conspiracy August 14, 2009 at 12:05 am #

    But of course citizenship was defined by a hodge podge of state laws (and some states whose constitutions didn’t define citizenship). The Act of 1790 added to (or declared as you will) the list of persons who were citizens at the time of birth by legislation or by common law. When the 1790 act was repealed and replaced by the 1795 act, those born of citizens overseas that were declared citizens, where no less natural born citizens for the lack of the words “natural born”.

  64. avatar
    Dr. Conspiracy October 9, 2009 at 2:41 pm #

    Mr. Dunbar argues: To accept one is to accept all.

    And I am perfectly willing to accept all, and I congratulate Mr. Dunbar for his collection of material.

    However, Mr. Dunbar’s comment is in the form of a reductio ad adsurdum argument, a form in which the arrival at a demonstrably false conclusion indicates the falsity of a premise.

    There is a step missing (a flaw that cannot be repaired) in Dunbar’s argument and that is that the opinion of the adopters of the 14th amendment or even the Congress in 1795 that repealed the Naturalization Act of 1790 of the “founding Congress” must be the identical opinion of the those that framed and ratified the Constitution. Insofar that Dunbar finds a difference between these later views and British common law does not logically imply that the framers and adopters of the Constitution shared these same differences.

    The second error from Mr. Dunbar is understanding “natural born citizens” as a set of qualifications rather than the definition of a state, particularly the state of being born a citizen. If this is correct, then the particular British common law list of individuals who qualify as natural born citizens has less impact on how Americans chose to define citizens.

    And we know that our ancestors did things in the name of their prejudices (e.g. the Chinese Exclusion Act, the internment of Japanese Americans during World War II, naturalization acts up until the mid 19th century that allowed only whites, and Supreme Court decisions such as Plessy v. Ferguson and Dred Scott v. Sandford) that are almost unthinkable today.